he
narrow margin of the U.S. Supreme Courts rebuke to George W. Bush on
military tribunals highlights the stakes on the table for the November
2006 congressional elections  nothing short of the survival of a
meaningful constitutional system in the United States.

The majority opinion, which stopped Bush from
proceeding with a kangaroo court that stripped Guantanamo Bay detainees
of basic legal protections and mocked the Geneva Conventions, carried a
profound secondary message  that the Court was not prepared to endorse
Bushs vision of his war powers as limitless and beyond challenge.

But it was equally noteworthy that only five of the nine
justices believed that the rule of law and constitutional limits on Bushs
powers should prevail. Four justices  Antonin Scalia, Clarence Thomas, Samuel
Alito and John Roberts  have made clear that they are prepared to rubber-stamp
any judgment that Bush makes.

In dissenting opinions on the tribunal case, Scalia, Thomas
and Alito embraced legal arguments that bowed before Bushs imperial presidency.
Chief Justice Roberts would surely have joined them, except that he had already
ruled in Bushs favor in the case while sitting on the U.S. Appeals Court and
thus was forced to recuse himself.

The one-vote fragility of the Supreme Courts embrace of
constitutional principles over one-man rule was further underscored by the fact
that the landmark ruling was written by Justice John Paul Stevens, a decorated
World War II veteran who is now 86. Another justice, Ruth Bader Ginsburg, is
known to have battled health problems.

It is a strong possibility that if the Republicans retain
control of the U.S. Congress in the November 2006 elections, Bush will get to
fill at least one more Supreme Court vacancy with the likes of Scalia, Thomas,
Alito and Roberts. Then, the courts majority will flip in the opposite
direction, granting Bush the authoritarian powers he so covets.

Even now, the court balance is being maintained by the
swing vote of Republican Anthony Kennedy, the author of the infamous Bush v.
Gore decision in December 2000 that prevented a full counting of votes in
Florida and handed
Bush the presidency.

But, at least in the near term, the Courts ruling means
that Bush will be forced to negotiate with Congress over creating new standards
for the tribunals that will try some of the 450 detainees now held by the United
States at Guantanamo Bay, Cuba.

Rebuffing Bush

In that ruling on June 29, the Supreme Court majority
rejected Bushs long-held contention that the Geneva Conventions do not apply to
detainees in the war on terror. The justices also repudiated Bushs tribunal
rules that allowed a defendant to be excluded from his own trial and permitted
hearsay evidence, unsworn testimony and evidence secured through coercive means.

The Executive is bound to comply with the rule of law that
prevails in this jurisdiction, Stevens wrote in the majority opinion.

The Courts conclusion ultimately rests upon a single
ground, added Justice Stephen Breyer. Congress has not issued the Executive a
blank check.

Implicitly the Courts slim majority was saying, too, that
the Constitution does not countenance the notion that the President as Commander
in Chief can assert plenary  or unlimited  powers indefinitely, any way he
sees fit.

Since the 9/11 terror attacks, Bush has maintained that he
possesses virtually all the legal power of the U.S. government; that he can
decide which laws will be enforced and which ones ignored; that he can take the
nation to war without congressional consent; that he can order torture and
assassination; and that he gets to parcel out constitutional protections to
Americans, overriding such guarantees as the habeas corpus right to a
fair trial and the Fourth Amendment ban on unreasonable searches and seizures.

By asserting that the war on terror exists everywhere,
Bush has claimed powers that know no bounds and no boundaries, reaching from the
farthest corners of the earth to the corner of Main Street and Elm.

In effect, Bush has negated the fundamental American
concept of unalienable rights, heralded by the Declaration of Independence and
enshrined in the U.S. Constitution and the Bill of Rights.

Today, under Bushs legal theories, Americans have rights
only at his forbearance. Bushs vision of his unlimited powers also would
obliterate the constitutional checks and balances by subordinating the
Legislature and Judiciary to the Executive.

Bush implemented these radical changes to the American
political system by combining what his legal advisers call the plenary powers
of the Commander in Chief with the concept of a unitary
executive in control of all laws and regulations.

One of the legal theorists who developed these concepts of
an all-powerful Executive was Samuel Alito, who became Bushs second appointee
to the Supreme Court, after Chief Justice Roberts.

Rights As History

Yet, maybe because Bushs assertion of power has been so
extraordinary, almost no one has dared connect the dots. After a 230-year run,
the unalienable rights  as enunciated by Thomas Jefferson, James Madison and
the other Founders  were history.

The Justice Department spelled out Bushs rationale for his
powers on Jan. 19, 2006, in a 42-page legal analysis defending Bushs right to
wiretap Americans without a warrant.

Bushs lawyers said the congressional authorization to use
force against the perpetrators of the Sept. 11, 2001, terrorist attacks places
the President at the zenith of his powers and lets him use that authority
domestically as well as overseas. [NYT, Jan. 20, 2006]

According to the analysis, the zenith of his powers
allows Bush to override both the requirements of the Fourth Amendment, which
protects against searches and seizures without court orders, and the 1978
Foreign Intelligence Surveillance Act, which created a special secret court to
approve spying warrants inside the United States.

In its legal analysis, the Justice Department added, The
President has made clear that he will exercise all authority available to him,
consistent with the Constitution, to protect the people of the United States.

While the phrase consistent with the Constitution sounded
reassuring to many Americans, what it meant in this case was that Bush believes
he has unlimited powers as Commander in Chief to do whatever he deems necessary
in the war on terror.

Yet, since the war on terror is a vague concept  unlike
other wars fought by the United States  there also is no expectation that
Bushs usurpation of traditional American freedoms is just a short-term
necessity. Instead it is a framework for future governance.

It was this historic and unprecedented assertion of
presidential power that was the real backdrop for the Supreme Courts ruling in
the case of Guantanamo detainee Salim Ahmed Hamdan, who was accused of
conspiracy because of his alleged work as a driver for al-Qaeda leader Osama bin
Laden.

In demanding reasonable legal safeguards for Hamdan and
other Guantanamo detainees, the Supreme Court majority also was declaring that
Bushs powers are not without limit. The Court was asserting that other human
beings who share the planet with Bush have rights, too.

Election 2006, however, may well decide whether the future
of the United States will be as a nation of laws with citizens who continue to
possess unalienable rights  or whether Bush becomes a modern-day king and all
other Americans become his subjects.

Robert Parry broke many of the Iran-Contra
stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from
Watergate to Iraq, can be ordered at
secrecyandprivilege.com. It's also available at
Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine,
the Press & 'Project Truth.'